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In my previous blog in Part I, I promised to outline the remaining recommendations for avoiding the most common mistakes on jury charges and covered preparation, timely lodging of objectives and outsourcing considerations. This article covers the final three tips.
The trial court is required to provide counsel to the jury charge in advance of the formal charge conference and to provide enough time for a meaningful review. So, the fourth tip is to use this time wisely and not get distracted or just glance over the document. Give the court’s final jury charge absolute undivided attention before the formal charge conference. Scrutinize every word, and notate any problems with the charge, so a proper record can be made during the formal charge conference.
Are the questions supported by legally sufficient evidence? Are the questions supported by the pleadings? Are the legal theories submitted valid? Does the charge omit important definitions, instructions or elements? Does the charge include irrelevant or incorrect definitions, instructions, or elements? Do any of the questions conflict? Does any language unfairly comment on the weight of the evidence? Does the charge comingle valid and invalid theories? Does the charge lump multiple categories of damages under a single award? These are just a few of the many issues attorneys must be prepared to address at the formal charge conference to preserve error for appellate review.
Fifth, have a keen understanding that the manner in which you present your objection could change, depending upon the nature of your objection. Objections and tenders must be in the proper form or they are waived. Twenty-seven years ago, the Texas Supreme Court stated, “There should be but one test for determining if a party has preserved error in the jury charge, and that is whether the party made the trial court aware of the complaint, timely and plainly, and obtained a ruling.” State Dept. of Hwys. & Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex. 1992). Nevertheless, knowing when to simply object or to object and make a written tender continues to be the most challenging aspect of the charge process. To assure error is preserved, some important guidelines include:
- If the court includes an erroneous or defective question, instruction, or definition, object regardless of who has the burden of proof. See R. Civ. P. 274 (“Any complaint as to a question, definition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless specifically included in the objections”).
- If the court omits an instruction or definition, object per Rule 274 and make a written request no matter who has the burden of proof. See R. Civ. P. 278 (“Failure to submit a definition or instruction shall not be deemed a ground for reversal of the judgment unless a substantially correct definition or instruction has been requested in writing and tendered by the party complaining of the judgment”).
- If the court omits a question on which the party has the burden of proof, object per Rule 274 and submit a proper question. See R. Civ. P. 278 (“”Failure to submit a question shall not be deemed a ground for reversal of the judgment, unless its submission, in substantially correct wording, has been requested in writing and tendered by the party complaining of the judgment; provided, however, that objection to such failure shall suffice in such respect if the question one relied upon by the opposing party”).
- If the court omits a question or any aspect of a question on which the other party has the burden of proof, objecting without tendering a question generally preserves error. See R. Civ. P. 278; see also Mangum v. Turner, 255 S.W.3d 223, 227 (Tex. App.—Waco 2008) (“If a question on a ground of recovery is omitted, or the question omits some essential element of a ground of recovery and is submitted to the jury over the objection of the party without the burden of proof, the party who objected to the partial submission is entitled to judgment, even if the jury returns a finding on the submission in favor of the party with the burden of proof”).
Lastly, make an adequate record. During the formal charge conference, when an objection is appropriate, identify the error with a specific reference to the affected portion of the jury charge, explain the problem with precision, inform the court what should be done about it, and secure a ruling on the record. When a tender is appropriate, tender a correct version of the definition, instruction or question, and if the court refuses it, ask the court to notate such refusal on the tender, and make sure it is made part of the record for appeal.
Steve Knight is a Shareholder in the Houston Litigation group and is Co-Chair of the Appellate Law section.
Throughout his career, Mr. Knight has successfully represented clients at every phase of the appellate process, from ...